THE NEW YOR.KER. Schwartz conceded in a memo to the S.G., "the Supreme Court's willing- ness to allow us to do this freely is intimately related to its conviction that we exercise a very high level of self- restraint in our dealings with the Court." He cited a Supreme Court opinion praising this trait of the Solic- itor General's, and continued, "The government as a whole accordingly has a vital interest in reserving the kind of change of position that would be involved here for cases in which there are compelling federal govern- mental interests that must be served and where no other party can be counted upon to make the arguments that we could make. This is not such a case." With a touch of deadpan, he closed, "I think it important to note that the argument on the merits simply isn't as open and shut as the memos from O.L.P."-a division of the Jus- tice Department called the Office of Legal Policy, which concurred with Reynolds-"and Civil Rights suggest. To file a brief supporting the state would be to ask the Court to discard 100 years of precedent regarding prac- tices that have been thought by J us- tices adhering to a wide variety of viewpoints to impair the integrity of the judicial process. I do not see a sufficient justification for the United States to file such a brief." The precedent that Schwartz had in mind was an 1880 case in which the Supreme Court had said that deliberate exclusion of blacks from a grand jury "is practically a brand upon them, af- fixed by the law, an assertion of their inferiority, and a stimulant to that race prejudice which is an impediment to securing to individuals of the race that equal justice which the law aims to secure to all others " In more than a dozen cases since then, the Justices had rej ected the Reynolds notion that a conviction should stand despite racial discrimination in the selection of a grand jury, and Rex Lee agreed with his assistant that the government should not challenge this established line of precedent Lee couched his judgment in terms that radiated sym- pathy with the President's agenda. "The most significant issues the Court will consider next term involve some aspect of racial discrimination," he wrote, "and all of these cases are cen- tral to the Administration's objectives. The Court is likely to be closely di- vided on all these issues. In the interest of success in these cases, we must not do anything to imply that we are op- posed to elimination of racial discrimi- nation in jury selection or broader contexts. " Reynolds asked the Attorney Gen- eral to overrule Lee, but the recently sworn-in Edwin Meese did not. In January of 1986, for a majority of the Supreme Court, Justice Thurgood Marshall wrote an opinion supporting the S.G .'s judgment. T HE fight over Vasquez v. Hillery was one of many disputes be- tween Reynolds and the S.G.'s office that stayed private during Rex Lee)s tenure, and spared Reynolds the bur- den of public scrutiny. Though Reyn- olds regularly put pressure on Lee and the S.G.'s office, the only dispute between the two men to go public was about one of a series of appeals known as the religion cases. These matters ultimately led to Lee's resig- nation as S.G. The religion cases took on the ur- gency of the President's agenda when one of them, Lynch v. Donnelly, raised the question whether the City of Pawtucket, Rhode Island, had violated the establishment clause of the First Amendment by sponsoring a nativity scene as part of its annual Christmas display. At Lee's request, Paul Bator took charge of the case. Bator's junior associate was a young lawyer in the S.G.'s office named Michael McCon- nell, who now teaches at the Univer- sity of Chicago Law School. Bator and McConnell saw the case as an oppor- tunity to challenge the wisdom of the Supreme Court's three-part test for determining whether government in- volvement with religion was constitu- tional. According to Lemon v. Kurtz- man, decided in 1971, government involvement with religion had to have a secular purpose to be permissible, a primary effect that neither enhanced nor inhibited religion, and no entan- glement between the institutions of government and religion. To the lower courts, sponsoring a crèche as part of Pawtucket's Christmas celebra- tion enhanced religion by giving it the city's seal of approval, so it was uncon- stitutional. To Bator, this was a rigid reading of the First Amendment. The core of the government's brief was a strongly worded recommenda- tion that the Supreme Court reconsider the Lemon test. "We suggest . . . that the three-part test... results in an- al ytic over kill when applied to the type of government action under con- sideration here," it said. Applying it to the annual sponsorship of a crèche by a city "tempts courts to engage in 51 LONDON, TOO. 0., "\ :' ,..: ,ì',. f\ .' ' . ", ' .... ,.,. " . i , .:: ';';',:-: ., 'j' . . t I t '; "' 1 '/'" . ; :.: ' . o.>P. .... '," . .v\ ; ..<;; . t .. f<, j f I '< ... v Ík ) . .... - . .... """"" . . . " deb, <<.N ..... " ..,.,,,, . .' þ. . . ..... From Copenhagen, wIth love. The most elegant name in furs has come to London. 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